Apr 3, 2020
OFLC Announces Electronic Issuance of PERM Labor Certification Documents and Releases FAQs on Impacts of COVID-19
Jonathan A. Grode
The Department of Labor’s Office of Foreign Labor Certification (OFLC) remains fully operational amidst the COVID-19 pandemic and continues to process and issue prevailing wage determinations and labor certifications that meet all statutory and regulatory requirements.
In an effort to ease the effects of potential service disruptions due to the COVID-19 pandemic, the OFLC announced on March 24 that the Atlanta National Processing Center would issue PERM labor certification documents electronically rather than physically beginning on March 25, 2020, and through June 30, 2020.
Pursuant to Department of Homeland Security (DHS) regulations, certain employment-based immigration visas require the submission of an original labor certification (Form ETA-9089) with USCIS Form I-140, Immigrant Petition for Alien Worker (Form I-140), except in cases where the original Form ETA-9089 has been previously submitted in support of another petition.
This temporary change in policy allows for a print-out of an electronically-issued Form ETA-9089 to serve as evidence of an original labor certification as long as the printed Form ETA-9089 is signed and dated by the foreign worker, preparer (if applicable), and employer prior to filing with Form I-140.
Employers, or their authorized attorneys/agents, who are not able to receive certified ETA-9089 documents by email will continue to receive physical documents via UPS regular delivery. All other stakeholders are encouraged to include the NPC’s email address (email@example.com) in their Address Book or list of authorized senders within their email systems to avoid relevant messages being filtered as SPAM.
The OFLC also released its first round of Frequently Asked Questions on March 20, addressing impacts of COVID-19 on OFLC operations and employers. The complete FAQ can be found here.
Notably, the FAQ offers guidance to employers regarding notice requirements for Labor Condition Applications (LCAs) and Applications for Permanent Employment Certification (Form ETA-9089):
- To file an LCA, an employer must provide notice of the LCA filing to its employees in the occupational classification in the area(s) of intended employment, on or within 30 days before the date of an LCA filing. In the absence of a bargaining representative, the employer may provide hard-copy or electronic notice to its employees which must be available to employees for a total of 10 calendar days. The hard-copy notice must be posted in two conspicuous locations at each worksite (or place of employment). During this pandemic, and in general, employers should also be aware that the regulations allow employers to provide electronic notice of an LCA filing. For electronic notice, employers may use any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or email.If employees are provided individual direct notice, such as by email, notification is only required once and does not have to be provided for 10 calendar days.
- Prior to submitting Form ETA-9089, the Notice of Filing (NOF) must have been posted for at least 10 consecutive business days during the same period of time that the employer conducts its recruitment efforts—between 180 days and 30 days before filing the Form ETA-9089. Due to the COVID-19 pandemic, OFLC will accept NOFs posted within 60 days after the deadlines have passed in order to provide sufficient time for employers to file their applications, provided that the employer initiated its recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020. In addition, OFLC will accept recruitment completed within 60 days after the regulatory deadlines have passed to provide additional time to complete the mandatory recruitment, provided that an employer has initiated recruitment efforts within the 180 days preceding the President’s emergency declaration on March 13, 2020.
Some additional takeaways from the FAQ include the following:
- Following standard operating procedure, OFLC will continue to contact employers and their authorized attorneys or agents primarily using email. If email addresses are unavailable, OFLC will use U.S. mail to contact employers and their authorized attorneys or agents.Employers who have temporarily closed their offices or who have shifted to telework will need to update their contact information to ensure receipt of correspondence related to an application by contacting the applicable OFLC NPC. Methods of contacting the applicable OFLC NPC are outlined in the complete FAQ.
- OFLC will make accommodations related to deadlines for employers and their authorized attorneys or agents affected by the COVID-19 pandemic. This includes requests for audit documentation, responses to a Notice of Deficiency, submissions of recruitment reports, business verification and sponsorship documentation, supervised recruitment, requests for reconsideration of a PWD, and any other request for information issued by OFLC containing due date deadlines. If the specific deadline falls within the period from March 13, 2020 through May 12, 2020, the employer’s response or submission of information or documentation will be considered timely if received by the appropriate NPC no later than May 12, 2020.
- Requests for extensions of time related to appeals of OFLC actions should be directed to the presiding administrative or judicial authority, including the Department’s Office of Administrative Law Judges (OALJ) for appeals of agency denials of labor certifications, debarments, revocations, or other agency actions related to the labor certification.For more information concerning OALJ operations, please visit www.oalj.dol.gov/.
- Employers with approved Labor Condition Applications (LCAs) who need to move workers on H-1B, H-1B1, and/or E-3 visas to worksite locations unintended at the time the LCA was submitted may do so without needing to file a new LCA, provided that both worksite locations are within the same area of intended employment. The employer must provide either electronic or hard-copy notice at the new worksite locations for 10 calendar days total, direct notice, such as an email notice, is provided. Because of the COVID-19 pandemic, the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location. Employers with an approved LCA may also move H-1B workers to unintended worksite locations outside of the area(s) of intended employment on the LCA using the short-term placement provisions.
- Employers who received temporary labor certification under the H-2A, H-2B, or CW-1 visa programs and who no longer have a business need for the workers employed under the temporary labor certification may request approval from the OFLC Chicago NPC Certifying Officer to terminate work under the job order and/or work contracts before the end date of work due to the impact of the COVID-19 pandemic.
- Businesses who have been impacted by the COVID-19 pandemic in critical need of H-2A workers to perform agricultural labor or services may file emergency H-2A applications with OFLC and request a waiver of the regulatory filing time frame if sufficient time to prepare all required documentation in order to file a completed job order with the State Workforce Agency and H-2A application with OFLCis not available.
If you have any questions about the impacts of COVID-19 on OFLC operations and your immigration process, please do not hesitate to call our office.